Premium Processing fees are technically optional, but frequently paid to increase the speed of adjudication from several months to potentially as little as two (2) to four (4) weeks. This program was suspended and unavailable for many H-1B categories over the last 6-12 months during which time such professionals and their employers nervously witnessed (or were impacted by) adjudication delays of approximately 4-12+ months, as well as USCIS’s frequent internal changes to its adjudication criteria which allowed it to issue bizzare numbers of queries and denials of H-1B petitions in 2018.

The overall average case processing time surged by 46 percent over the past two fiscal years and 91 percent since FY 2014.•USCIS processed 94 percent of its form types—from green cards for family members to visas for human trafficking victims to petitions for immigrant workers—more slowly in FY 2018 than in FY 2014.•Case processing times increased substantially in FY 2018 even as case receipt volume appeared to markedly decrease.Other agency data lays bare a USCIS “net backlog” exceeding 2.3 million delayed cases at the end of FY 2017. This total amounts to more than a 100 percent increase over the span of one year despite only a four percent rise in case receipts during that period.

H-1B professionals and their employers have an interest in adjudications free of undue delay, and because they are effectively required to do so, they will pay more. These parties have been significantly impacted by “BAHA” Executive Order and thus appreciate the security that comes with a final decision “in-hand”, to travel, change employers, get married, renew a drivers license, or in general, to live a slightly less uncertain life on foreign soil. Ultimately, it is all about perspective: an American would likely consider paying “base” government fees of up to $6,450.00 per H-1B petition more than sufficient to fund an adjudication that is timely, just, and logical. But H-1B workers and their employers are overjoyed at the opportunity to pay $1,410.00 more to USCIS for nothing more than a timely decision.

“Data for the first quarter of US fiscal 2019 (that is, three months ended December 2018) shows that 60% of all completed H-1B cases had been issued RFEs. This is significant, considering that only 38% of all completed H-1B applications received RFEs during fiscal 2018 (12-month period ended September 30, 2018) and 21.4% in the previous fiscal.

…

The denial rates for initial visa applications for Capgemini was as high as 80%. It was 61% for Cognizant, which was the top employer. It ranged between 20% and 40% for India headquartered companies. Contrast this with US headquartered non-consultancy companies such Amazon, Microsoft, Intel, Google, Facebook and Apple, which saw a denial rate of only around 1% for new visa applications. The total approval rate for these US companies (including for continued employment) was 98-99%.

USCIS denied 54% of the initial H-1B petitions for Infosys while for Mindtree the denial rate was 40%. It was 23% for Wipro and the L&T group combined (comprising L&T InfoTech and L&T Tech Services). TCS, the second largest employer of H-1B workers, fared better with a denial rate of 22%.

…

“The ‘Initial Evidence’ Memo will be used to aggressively reject H-1B applications filed by IT consultancy companies,” forecasts Ashwin Sharma, a Florida-based immigration attorney. Sharma believes that the USCIS has essentially crucified the entire IT consultancy sector.

“To illustrate, I have seen USCIS mischaracterize very clear language to win its argument. USCIS knows that each and every one of its illegal denials can easily be overturned by a Federal Court judge, but it also knows that the vast majority of its improper decisions won’t be questioned because the gateway to justice has a high admission fee,” he said.”

Though USCIS has been improperly targeting and denying H-1Bs over the last two years, most particularly those filed for Indian professionals, I predict that the last quarter of 2018 will constitute the highest denial rate in the history of the H-1B program. Even clearly approvable H-1B cases are queried and often improperly or even unlawfully denied; not difficult for USCIS to do when it ignores or mischaracterises the law.

Ajay Kuchikulla, an Oracle database administrator for Dublin, Ohio-based ERP Analysts Inc., was denied what likely would have been the last extension of his H-1B skilled guestworker visa prior to becoming a permanent resident, according to the complaint filed Jan. 28 in the U.S. District Court for the District of Columbia.

The denial came despite several prior approvals of H-1B extensions for Kuchikulla, whose job essentially has remained the same since he got his first H-1B visa in 2005, it said.

Kuchikulla was approved for his green card in 2012 but has had to wait for one to become available. Based on current projections of green card availability, he will be eligible to become a permanent resident around April 2020.

The policy is part of a coordinated Trump administration effort to ban IT consulting companies from the H-1B program, the complaint said. The USCIS relied on ERP Analysts’ inability to meet additional evidentiary demands placed on such companies to deny Kuchikulla’s visa, even though he works directly for the company and not at a third-party site, it said.

A representative for the USCIS wasn’t immediately available for comment.

The complaint filed on behalf of Mr. Kuchikulla on January 28, 2019 is ERP Analysts Inc. v. Cissna, D.D.C., No. 1:19-cv-00193: it makes for a great read. An excerpt that says it all:

“Without relying on statutory authority or promulgated regulations, Defendant [USCIS] has determined that there are two tiers of employers in the H-1B program: consulting companies and all other petitioning companies. It also has created a dizzyingly complex list of evidentiary requirements that only apply to consulting companies. Defendant explicitly conditions approval of an H-1B on compliance with these evidentiary requirements.
At present, it is impossible for a member of industry or even attorneys to read the statute, regulations, forms, and instructions to the forms, and understand what Defendant actually requires for approval of an H-1B petition. Moreover, Defendant’s written decisions provide neither law, nor an explanation of the basis of denial that provides clarity for how future petitions could comply with these unwritten rules. Defendant’s adjudications are wildly inconsistent, rendering disparate decisions on identical petitions filed by the same employer.”

Ultimately, when the dust settles and the H-1B denial numbers for Q4 2018 are revealed, one hopes that they are followed by a public outcry, adverse publicity, and a general accounting of such unlawful policies and their makers.

The USCIS reversal is in line with what many businesses are seeing when they take the agency to court over visa decisions, particularly under the H-1B program. Court rulings so far have been rare, but the USCIS in most cases has avoided litigation by sending an approval after a lawsuit is filed.

That also means that courts aren’t getting the opportunity to weigh in on whether the rationale behind the visa decisions is in line with the Immigration and Nationality Act and USCIS regulations.

The complaint in Kuchikulla’s case argued that a policy requiring extra evidence from information technology consulting companies—which was used to justify his H-1B denial—illegally puts added burdens on those companies that isn’t justified by the law.

Two other lawsuits directly challenging the policy, also filed by Wasden, are pending in federal district court.

USCIS’s final rule on changes to the H-1B lottery process adds a requirement that petitioners seeking to file H-1B petitions subject to the regular cap, including those eligible for the advanced degree exemption, first electronically register with USCIS during a designated period. However, USCIS is suspending this proposed registration requirement for the FY2020 cap season in order to complete testing of the new registration system.

The rule also reverses the order by which USCIS selects H-1B registrations (or petitions, for FY2020 or any other year in which the registration requirement is suspended) by first selecting registrations submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption. USCIS will then select from the remaining registrations a sufficient number projected as needed to reach the advanced degree exemption. This change to the order of the selection process will be implemented for the FY2020 cap season.The rule will be published in the Federal Register on 1/31/19 and will be effective 60 days from the date of publication.

DHS Announces Final Rule for a More Effective and Efficient H-1B Visa Program

Final Rule Effective Beginning April 1, 2019

WASHINGTON—The Department of Homeland Security (DHS) posted today for public inspection, a final rule amending regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and it introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The rule will be published in the Federal Register on Jan. 31, and will go into effect on April 1, though the electronic registration requirement will be suspended for the fiscal year (FY) 2020 cap season.

“These simple and smart changes are a positive benefit for employers, the foreign workers they seek to employ, and the agency’s adjudicators, helping the H-1B visa program work better,” said USCIS Director L. Francis Cissna. “The new registration system, once implemented, will lower overall costs for employers and increase government efficiency. We are also furthering President Trump’s goal of improving our immigration system by making a simple adjustment to the H-1B cap selection process. As a result, U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.”

Effective April 1, USCIS will first select H-1B petitions (or registrations, once the registration requirement is implemented) submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select from the remaining eligible petitions, a number projected to reach the advanced degree exemption. Changing the order in which USCIS counts these allocations will likely increase the number of petitions for beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected under the H-1B numerical allocations. Specifically, the change will result in an estimated increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.

USCIS will begin accepting H-1B cap petitions for FY 2020 on April 1, 2019. The reverse selection order will apply to petitions filed for the FY 2020 H-1B cap season. Petitioners may file an H-1B petition no more than six months before the employment start date requested for the beneficiary. USCIS will provide H-1B cap filing instruction on uscis.gov in advance of the filing season.

Importantly, after considering public feedback, USCIS will be suspending the electronic registration requirement for the FY 2020 cap season to complete user testing and ensure the system and process are fully functional. Once implemented, the electronic registration requirement will require petitioners seeking to file H-1B cap petitions, including those that may be eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. Only those whose registrations are selected will be eligible to file an H-1B cap-subject petition. USCIS expects that the electronic registration requirement, once implemented, will reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS and petitioners.

Additionally, USCIS will publish a notice in the Federal Register to announce the initial implementation of the H-1B registration process in advance of the cap season in which it will implement the requirement. Prior to implementation, USCIS will conduct outreach to ensure petitioners understand how to access and use the system. Once implemented, USCIS will announce the designated electronic registration period at least 30 days in advance for each fiscal year it is required.

On April 18, 2017, President Trump issued the Buy American and Hire American Executive Order, instructing DHS to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of U.S. workers in the administration of our immigration system.” The executive order specifically mentioned the H-1B program and directed DHS and other agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

The Office of Foreign Labor Certification (OFLC) of the U.S. Department of Labor (DOL) announced that the new ETA Form 9035, Labor Condition Application (LCA) for Nonimmigrant Workers, will be fully implemented on November 19, 2018. The existing LCA remains valid and the public can continue to file it until November 19, 2018. Employers or their authorized representatives who are filing an LCA on or after November 19, 2018, must use the revised form. Certified LCAs filed prior to November 19, 2018 will also remain valid and can be used by petitioners to support H-1B filings.

AILA has already submitted comments on the proposed revised form during the Notice and Comment period in October 2017 and June 2018. In the latter, AILA noted that the additional time required to complete the new ETA 9035 had been significantly underestimated by DOL and that, “[w]hile the proposed changes are largely helpful, there are nevertheless areas where the proposed changes may (1) violate regulatory requirements; (2) create unnecessary new burdens on employers; and (3) fail in practice to meet DOL’s stated purpose of providing clarification.”

On 11/1/18, the Compete America coalition has issued a letter to the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services raising the issue that, “The agency’s current approach to H-1B adjudications cannot be anticipated by either the statutory or regulatory text, leaving employers with a disruptive lack of clarity….”

The letter reiterates the major concerns that my colleagues and I have (frequently) raised, beginning with legal concerns about current H-1B adjudications because USCIS appears to have taken leave of two principles underscoring eligible H-1B petitions, “First, the job offered must be in “…an occupation which requires theoretical and practical application of a body of highly specialized knowledge.” Second, a four-year university degree or graduate or professional degree must be the “usual, common, or typical” requirement for the job. Patterns in H-1B adjudications over the last 18 months suggest other standards are being applied.”

The letter identified “patterns in H-1B adjudications that reflect new agency interpretations inserting salary requirements as an unstated prerequisite“, despite the fact that “nothing in the statute or regulations contemplates or suggests, that USCIS could ever take the position that it per se excludes or disfavors entry-level jobs in an occupation, or young professionals working in jobs in an occupation, as qualifying for H-1B specialty occupation approval.”

The origination of this particular pattern arose about 18 months ago, at the end of March 2017, when USCIS issued a surprise policy change effectively holding Level 1 Prevailing Wages to be insufficient in establishing eligibility for H-1B approval, particularly for IT workers. As I’ve previously indicated on this point that the Dept of Labor sets prevailing wage levels for H-1B professions every year in July, in other words, the DOL can and generally does increase these wage levels every year: there was no legitimate statutory or regulatory basis or need for USCIS to have inserted itself in an established wage determination process, nor for it suddenly declare ineligible for H-1B status those jobs with wages otherwise compliant with DOL requirements. This relatively new wage issue seems driven by motives that go beyond simple or logical explanations, especially when we note that the converse argument highlighting the fact that a Petitioner is paying a Level 3 or 4 (highest) wage as an element in establishing Specialty Occupation can be dismissed by USCIS as irrelevant:

Among its other points, the coalition letter also expressed concern as to “Patterns in H-1B adjudications that reflect new agency interpretations beyond the statute’s prerequisites for a “Specific Specialty” of study”. The letter highlights the fact that, “...[n]othing in the statute allows for administrative discretion to restrict a qualifying specialty occupation to only those occupations where “the specific specialty” necessary for the job is only obtainable through completion of a single, exclusive degree.” Despite this, USCIS will normally presume that, “…alternative degree options as the minimum requirement for a job suggest, standing alone, that a specific body of knowledge is not required.”

To complement wage ranking and to preserve scarce visas for the best uses, America should also raise the H-1B minimum wage from $60,000 to a higher figure like $100,000, perhaps with a few lower thresholds for occupations like social work or entrepreneurship. This minimum level can be designed with automatic adjustments for future years that are based on inflation or changes in average US wages. If a higher minimum wage causes demand to fall short of supply at times, unused visas can be saved and reintroduced when supply becomes again constrained, with visas that sit too long simply expiring. There are downsides to wage floors, such as their mismatch to innovative jobs that may be better served with heavy equity incentives, but minimum wages can provide strong assurances to the public that visas are being put toward best uses.

And in any case, even if you hypothetically assume that $60,000 was a true figure, there are already simple mechanisms in place increase this level at any time, which in fact have already largely been implemented:

the Dept of Labor sets prevailing wage levels for H-1B professions EVERY YEAR IN JULY. The DOL can and generally does increase these wage levels every year.

On the topic of wages, I wish to note that this Administration seems intent on reducing H-1B approvals, especially to Indian IT workers and their Petitioners, and the wage issue is, in my opinion, already addressed and now just an excuse. Otherwise qualified Level 4 (top) wage earning IT H-1B workers are not automatically spared a denial. The H-1B program, as set out by Congress, has been modified repeatedly by several “pop goes the weasel” style policy changes and multiple “reinterpretations” of existing H-1B laws and guidance at the behest of of this Administration, the latter driven by motives that obviously go beyond simple or logical issues like DOL issued wage rates.

“The Trump administration plans to narrow the definition of specialty occupation to limit the use of H-1B visas, but it may be limited in how far it can go.

A proposal expected in January from the U.S. Citizenship and Immigration Services would refine the meaning of specialty occupation “to focus on obtaining the best and the brightest foreign nationals via the H-1B program.”

The proposed regulation “would be the biggest changes to the H-1B program since 1990,” when the visa was overhauled by Congress, Sarah Pierce, a policy analyst with the Migration Policy Institute, told Bloomberg Law.

The agency could block entry-level jobs from the program while redefining “employer-employee relationship” to severely curtail staffing companies’ access to the visas.”

Inserting the otherwise innocuous phrase “Best and the Brightest” (“B&B”) within this proposed rule does nothing to alleviate the suspicion with which it is met. This is understandable, considering that for the last 1.5 years this Administration has tasked USCIS with issuing “pop goes the weasel” style policy changes and multiple “reinterpretations” of existing laws and guidance. The ultimate result has been a targeted effort to reduce the use of H-1Bs visas by Indian IT professionals and their employers. IT jobs paying Level 1 prevailing wages and common occupational classifications such as Computer Programmers and Computer Systems Analysts now face an almost automatic presumption of ineligibility. Third-party job site consulting assignments are scrutinized more heavily and are more likely to be denied. Deference is no longer given to extensions of previously approved H-1B cases, even if there have been no changes in employment. The standard of evidence in filing H-1Bs seems to have risen overnight from the “Preponderance of the Evidence” to “Beyond a Shadow of a Doubt”.

As a result of USCIS’s recent changes to the H-1B program, Requests for Evidence and denial rates for IT workers have increased nationwide. But this new proposed policy promises to make matters even worse, if that’s possible.

You don’t have to be an Oracle to realize that these planned changes are among a rash of similar changes, all of which appear to target one particular group: Indian IT professionals. The ultimate aim appears to be to dissuade such professionals from immigrating to the U.S. by making the H-1B program more complicated, unpredictable, expensive, and ultimately untenable.

USCIS announced that it will again suspend premium processing for H-1B Cap Subject cases until Sept. 10, 2018 in an effort, it claims, to “reduce overall H-1B processing times“. The update also warns that it will deny any H-1B Cap Subject petition that provide one combined check for the H-1B and Premium Processing fees (even accidentally).

USCIS’ decision is illogical because it is rejecting a significant and valuable revenue stream which it sorely needs for its operations to actually reduce overall processing times. USCIS is almost entirely funded by filing fees such as the $1225.00 premium processing fee, to the extent that when the rest of the Federal Government shuts down, USCIS doesn’t. And currently, USCIS’ need for said revenue is even more critical considering that its staff and officers have been called upon to do increasingly more work in the adjudication process with regards to the intensity of scrutiny and the number of cases, all the while remaining consistent with each of the recent Policy Memos that have upended existing guidance/definitions relied upon by everyone, even AOs.

“The U.S. Citizenship and Immigration Services’ (USCIS) most recent cost and schedule baseline, approved in April 2015, indicates that its Transformation Program will cost up to $3.1 billion and be fully deployed no later than March 2019. This is an increase of approximately $1 billion with a delay of more than 4 years from its initial July 2011 acquisition program baseline. In addition, the program is currently working to develop a new cost and schedule baseline to reflect further delays. Due to the program’s recurring schedule delays, USCIS will continue to incur costs for maintaining its existing systems while the program awaits full implementation. Moreover, USCIS’s ability to achieve program goals, including enhanced national security, better customer service, and operational efficiency improvements, will be delayed.

…

Given the history of development for the Transformation Program and the subsequent commitment of additional resources for a new system, it is more important than ever that USCIS consistently follow key practices in its system development efforts. For example, the program has already reported realizing risks associated with deploying software that has not been fully tested, such as system bugs, defects, and unplanned network outages. If the agency does not address the issues GAO has identified in prior work, then it will continue to experience significant risk for increased costs, further schedule delays, and performance shortfalls.”

It is ironic that though USCIS has failed to create a functioning computerized system despite losing $3,000,000,000.00 over 10+ years, it has had no problems issuing unprecedented levels of queries and denials on H-1B petitions for IT professionals on the basis that their jobs aren’t “Specialty Occupations”.

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